By Jerome A. Cohen
Since Thursday’s secret trial of the Australian journalist Ms. Cheng Lei, I have seen little mention of the case. Yet, as we await the Beijing court’s decision, many questions persist. Since acquittal would be a stunning surprise, I hope that quiet negotiations are taking place between the Australian and Chinese governments that will limit the sentence to prison time already served plus immediate deportation. Alternatively, her immediate release and deportation could be rationalized on the ground of alleged need for foreign medical attention even though she may be formally sentenced to a longer stretch in prison.
There are many precedents for both possible outcomes in the PRC, which regards such results as acceptable in cases that have aroused foreign outrage. Criminal conviction and sentencing are seen to vindicate PRC justice and sovereignty, and the defendant’s subsequent release is portrayed as a demonstration of Chinese munificence. I assume that the hope for leniency accounts for the apparent failure of the Australian Government to protest the exclusion of its ambassador from attending the trial as a blatant violation of the Australian-Chinese consular treaty as well as for the general reasons cited by the ambassador.
I have not seen Ambassador Graham Fletcher’s full statement issued outside the courthouse, nor any subsequent statement of his government, but the report on the case by Alice Uribe in the Wall St. Journal is worth noting. It is good to know that Ms. Cheng was allowed a recent consular visit while in pre-trial detention and that she appeared to be doing well in the circumstances, although denied the opportunity to speak with her children. It is also good to know that she is being defended by very competent lawyers of her choice. But on what basis did the ambassador conclude that the lawyers “are doing their job well”?
Has he discussed the case in detail with the lawyers? Have they had unfettered access to their client and been allowed to conduct an independent investigation? If they have received a copy of the indictment, as required by Chinese law, were they permitted to discuss it with the ambassador as well as their client? Did the lawyers themselves know the basic facts alleged so that they could at least seek to prepare a credible defense?
In many such cases defense lawyers are not allowed to share information about the case even with those who have retained them to represent the accused. And, since the trial, have the lawyers been permitted to report to Cheng’s family and the ambassador what took place at the brief secret trial? As Ambassador Fletcher rightly said outside the courthouse Thursday: “We can have no confidence in the validity of the process, which is conducted in secret.”
One thing the ambassador stated was truly puzzling. When asked whether he believes the case is a political one, he responded: “We have no reason to make that conclusion.” What? Perhaps that remark was meant to leave open the door to a behind-the-scenes negotiation leading to Ms. Cheng’s long-overdue freedom. Let’s hope so!